Recent reports have stated that Tiger and Elin's marriage is definitely over. Reports suggest that custody of the children is the central issue in the parties divorce. According to the press, Tiger and Elin are trying to work on an agreement where Elin can take the kids to Sweden and Tiger will have either custody or visitation rights. Tiger is seeking joint custody of their children. Sources say there has been no conflict over the children and Tiger and Elin only want what is best for them.
How would Tiger and Elin resolve custody and access issues in Ontario?
First it is important to note that 'custody' in Ontario refers to the major decisions that affect the overall welfare of the children such as education, religion and the children's healthcare. It does not pertain to the time spent with the children, access however does.
The Ontario courts are more likely to award joint custody where the parties have a good relationship. Joint custody requires parents to make important decisions about their children together, which is difficult when the parties cannot co-operate. Seeing as how Tiger and Elin are attending basketball games together, we can assume that they are on relatively good terms. An Ontario judge would likely award Tiger and Elin joint custody because they are communicating with one another and thus should be able to make important decisions regarding their children together. Furthermore, there is no evidence to show that Tiger's infidelities have had any negative effects on his parenting ability, therefore, joint custody will most likely be granted. Primary residency refers to the parent who primarily cared for the children during the marriage and after the parties have separated. Given Tiger's busy golf schedule, we can assume that Elin was the primary caregiver during the parties' marriage. If this is the case, then it is likely that the court will award primary residency with Elin. Since the parties have an amicable relationship, it is also likely that Tiger will have generous access with the children, discussed below.
'Visitation rights' is what is termed 'Access' in Ontario. Access deals with the amount of time a non-custodial parent (here Tiger) has with the children. Access will allow Tiger to visit the children. Tiger and Elin can either come up with an access schedule together, or alternatively, the court may determine same. If this is the case and Tiger has a good parent-child relationship with his children, the court will allow Tiger to have generous/liberal access with the children.
What would happen if Elin decides to move the children to Sweden?
The notion of custody under the Divorce Act encompasses the right to choose the child’s place of residence, absent an agreement or a court order to the contrary. Elin can decide the children’s place of residence subject to Tiger's rights to oppose the change by seeking a variation of the custody or access terms (if there is an order in place).
If there is an existing custody order in place, Tiger would need to apply for a change in the custody order establishing that there has been a material change in the circumstances affecting the children, namely that Elin would like to move the children to Sweden with her, which will affect Tiger's access with the children. The court will then consider what is in the best interests of the children. This inquiry does not begin with any presumption in Elin's favor although her views will be respected and considered as she is the custodial parent.
As outlined in the Supreme Court decision ofGordon v. Goertz, the Court will then consider the following factors:
- the existing access arrangement and the relationship between the child and the access parent;
- the desirability of maximizing contact between the children and both parents;
- the views of the child;
- the custodial parent's reason for moving, (only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child); and
- disruption to the child of a change in custody; and disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
If Elin and Tiger were on bad terms and the Court was of the view that the reason for the move was to frustrate a positive access relationship with Tiger and the children, then motive for the move may be considered by the Court and thus, the Court may not allow Elin to take the children with her to Sweden. The onus would shift to Elin to establish that the decision to relocate is not made in order to undermine Tiger's access time with the children.